The Doctrine of Informed Consent and Respect for Autonomy

In this posting I want to examine the relationship, if any, between the doctrine of informed consent and respect for autonomy. In doing so I will try to answer three important questions. Firstly is the doctrine of informed consent based on respecting autonomy or is it a sui generis doctrine? The fact we talk about a doctrine of informed consent seems to suggest the latter. Secondly if informed consent isn’t based on respecting autonomy should it be so based? Lastly if informed consent is based on respecting autonomy what type autonomy should that be?

Is informed consent based on respecting patient autonomy? According to Charles Foster the doctrine of informed consent is in a mess.

“Informed consent, in practice, is a bad joke. It’s a notion created by lawyers, and like many such notions it bears little relationship to the concerns that real humans have when they’re left to themselves, but it creates many artificial, lucrative, and expensive concerns.” Practical Ethics

Let us accept that the principles underlying informed consent are unclear. Let us try to start understanding these underlying principles by examining the process of informed consent in practice. When taking informed consent a patient’s doctors propose some form of treatment and provide the patient with the information he needs in order to make a good decision. The patient then agrees or refuses to agree to this treatment. What is the purpose of this process? The purpose of the agreement part of this process seems clear. The agreement part prevents the patient being treated against his will and his doctors from being accused of assault. The purpose of the information part is different. The purpose of this part is to enable patients to make good decisions. What exactly do we mean by a good decision? A decision which is in the patient’s best interests or an autonomous decision? In a medical setting a decision which is in a patient’s best interests is one which minimises harm to the patient,  maintains or improves his physiological health. The amputation of a patient’s gangrenous leg would be an example of acting in a patient’s best interests by minimising harm. The provision of drugs to control a patient’s blood pressure would be an example of acting in a patient’s best interests by maintaining his physical health. A kidney transplant would be an example of improving a patient’s health. Autonomy is concerned with self-government and very roughly speaking an autonomous decision is one by which someone governs himself. However self-government is simply governing oneself and need not always be good government. We can govern ourselves badly. Let us assume that a patient simply wants to accept his doctors’ judgement about his treatment and doesn’t want to receive any additional information. Intuitively such a decision can be seen as a decision by which he governs himself and as a result is an autonomous decision for after all we can simply choose to follow our lawyer’s advice and most would regard such a decision as autonomous. However under The General Medical Council’s proposed guidelines such a decision might not be seen as a valid informed consent decision.

“If, after discussion, a patient insists that they don’t want even this basic information, you must explain the potential consequences of them not having it. This might include being unable to proceed if you are not confident that their consent would be valid, or if you are not confident that the proposed course of action would be beneficial to the patient overall.” (1)

In the light of the above it would appear that The General Medical Council’s guidelines are not really based on respecting autonomy and the purpose of providing information when taking informed consent is to enable patients make decisions which are in their best interests.

It might be objected that I have only briefly sketched a certain account of autonomy and that a different account might mean that the doctrine of informed consent could be based on respect for autonomy. After all in my brief account the patient in my example above who fully trusted his doctors to make a decision on his behalf might wake up to unexpectedly find himself with only one leg. It might be suggested such a decision isn’t an autonomous one and that we should adopt a more substantive account. For the sake of argument let us assume an autonomous decision must be one that concurs with some generally accepted set of norms. If these norms are to be generally accepted then they must concern what is good for people. Autonomous decisions become linked to good decisions. An autonomous decision must be a good decision and a bad decision cannot be an autonomous one. I now want to argue against accepting such a substantive account of autonomy. If an autonomous decision must be a good decision because it must concur with some accepted norms then it might be questioned whether such an account of autonomy is really doing any useful work. A substantive account of autonomy puts itself out of business because we only need to consider good and bad decisions. We don’t need to consider autonomous decisions at all. Using a substantive account of autonomy an autonomous decision must of necessity be a good decision according to some accepted norms whilst on a content neutral account of autonomy an autonomous decision can be a bad decision. Of course it is preferable that an autonomous decision, using a content neutral account of autonomy, is a good decision which benefits the decision maker but the purpose of respecting autonomy remains simply to respect the decision maker as a person and the actual decision doesn’t of necessity need to be a good one. If we accept the above then we have two options. Firstly we could abandon the pretence that underlying the doctrine of informed consent is respect for autonomy or secondly we could accept that underlying the doctrine of informed consent is respect for a content neutral or primitive account of autonomy and modify the doctrine accordingly.

If we accept the above then there is not only a difference in complexity between substantive and primitive accounts of autonomy but more importantly these different accounts have a different focus. A substantive account focusses on respecting good decisions, a primitive account focusses respecting persons by simply accepting their decisions. Adopting a primitive account requires adopting a certain degree of humility. Let us accept that if the concept of autonomy is to remain a relevant one that it must be a primitive or content neutral concept based on respecting persons. Such a concept might be classed as a Millian concept. In the rest of this posting ‘autonomy’ will refer to such a concept. Let us also accept the first of the above options that the doctrine of informed consent is a doctrine in its own right and isn’t based on respect for autonomy. The informed consent process starts with a patient’s doctors proposing a course of treatment which they believe to be in his best interests, the patient then consents or refuses to consent to the proposed treatment. I argued above that the purpose of informed consent is to get a patient to consent to treatment which his doctors believe to be in his best interests. In almost all cases the patient simply consents and no problems arise. What is interesting are cases in which the patient refuses to consent. In these cases according to the doctrine of informed consent a patient’s doctors must be sure, or take steps to ensure, that the patient knows the consequences of his actions. However let us assume that the patient maintains his refusal of consent. By what standards is his competence to refuse treatment measured by and how is it assessed? If someone takes a driving test his competence to drive is based on his actual driving. This is not true when assessing someone’s ability to give informed consent. Someone’s competence to give informed consent isn’t based on his actual decisions. His decision might of course trigger a competence assessment but his competence isn’t dependent on his actual decision. Someone’s competence to give informed consent is based on his ability to make good decisions based on his best interests. I would suggest that someone who has the ability to make good decisions based on his best interests is self-governing, is autonomous.

As mentioned above the purpose of a driving test is to measure someone’s competence to drive and the criteria by which his competence is measured is by his actual driving. The same isn’t true of informed consent. I have argued above that the purpose of informed consent is to enable patients to make good decisions. I have further argued above that the way in which a patient’s competence to make good decisions is assessed is by his ability to make autonomous decisions. Such a mismatch creates problems and perhaps is one of the reasons why the doctrine of informed consent is in a mess. Two solutions might be suggested to remedy this mismatch. First the purpose of informed consent should be to enable a patient to make a good decision in particular circumstances and the patient’s competence should be assessed by his ability to make a good decision in these circumstances. Secondly the purpose of informed consent is to enable a patient to make an autonomous decisions and his competence to do so should be assessed by his ability to make an autonomous decision.

Let us consider the first of these options. Let us accept that a good decision is one that is in the decision maker’s best interests and that a decision is a competent one only if the decision is in the decision maker’s best interests. Clearly if someone makes a decision to do something which he believes isn’t in his best interests then he isn’t making a good decision. If a patient’s competence depends on him making a good decision then he is incompetent. Perhaps he is paralysed by fear. However in practice most people make decisions which they believe to be in their best interests. Moreover in a medical setting there is usually agreement between the patient and his doctors about what these best interests are. Unfortunately in a few cases in which there might be disagreement about what is in a patient’s best interests. Let us accept that a patient who makes a decision which he believes to be in his best interests, but which is generally believed not to be in his medical interests by his doctors, is making an incompetent decision. In practice if a child or cognitively challenged adult makes a decision which others believe isn’t in his best interests his competence might be questioned and he might be treated against his will. Unfortunately if a competent decision must be a good decision then the same considerations would seem to apply to all patients. Accepting the above would mean that if any patient makes a decision which is generally regarded as not being his best interests then his decision is an incompetent one. In these circumstances the patient’s doctors might be accused of paternalism or even epistemic arrogance. Fortunately in most cases a patient’s medical best interests and what the patient believes are his overall best interests concur. However this isn’t true in all cases. In cases in which these interests don’t concur do we insist that a competent decision is based on a patient’s best medical interests or what he believes to be in his overall best interests? Practical considerations and the need to avoid the charge of paternalism suggest that we should choose the second option. However if we accept that a patient is making a competent decision when it concurs with what he believes are in his overall best interests we are back to assessing a patient’s competence to make a good decision by assessing his ability to make an autonomous one and the above mismatch remains unresolved.

The above difficulties suggest that we should choose the second option. The purpose of informed consent should be to enable patients to make autonomous decisions about their treatment and that any competence assessment should be based on their ability to make autonomous decisions. This provides an answer to the second of my three initial questions. Informed consent should be based on respect for patient autonomy. Moreover if a substantive account of autonomy makes itself redundant as I have argued above the type of autonomy underlying informed consent must be a primitive or Milliian account. This answers the third of my three initial questions. Accepting this option has consequences for the amount of information which needs to be supplied to patients when taking informed consent. In the past under the doctrine of informed consent a patient’s doctors determined what risks the patient should be made aware of. However the Montgomery ruling Montgomery ruling stated that a patient’s doctors must ensure that the patient is aware of any and all the risks involved. If patients are to make informed consent decisions based on respect for autonomy they don’t always need to be aware of any and all the risks and the Montgomery ruling seems to suggest that informed consent shouldn’t be based on respect for a primitive account of autonomy. However if we accept that if an account of autonomy is to remain a meaningful account that it must be a primitive account then if informed consent is based on respect for autonomy  it must be based on a primitive account. Accepting the above means that a patient’s doctors should have a dialogue with him about any suggested medical procedure. How this dialogue proceeds shouldn’t be preordained by some doctrine but driven by the patient’s needs. In most cases this will include informing him about any major risks and life changes he faces. However some patients might need less or more information in order to make an autonomous decision. As mentioned above an autonomous agent can make an autonomous decision to trust the advice of his lawyer or financial advisor. If someone is non-autonomous someone else might be given power of attorney to act on his behalf. Are doctors any less trustworthy than lawyers or financial advisors? It would seem to me they aren’t. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? Provided the patient isn’t incapacitated by fear it isn’t. It follows if informed consent is based on respect for autonomy that a patient should be able to make a competent decision simply to take his doctors’ advice. Other patients might need more information than is usually supplied in order to make an autonomous consent decision. Doctors should make it clear that they are willing to supply more information when this is requested. For instance it might matter greatly to a Jehovah’s witness whether there would be any possibility of a blood transfusion however remote this possibility might be.

It might be objected that I have already introduced an example which shows that it would be absurd to base the doctrine of informed consent on a non-substantive or Millian account of autonomy. Let us agree that if we accept such an account that a patient can make a competent decision simply to trust his doctor. Let us recall the patient with the gangrenous leg. Let us assume that this patient simply wants to trust his doctor and refuses to listen to any information provided. He wakes up and unexpectedly finds he has only one leg. Such a scenario seems absurd. Perhaps then the basis of informed consent should be a substantive account or the doctrine of informed consent should be a self-contained doctrine. Let us assume the patient still wants to simply trust his doctors and refuses to listen to any information concerning his procedure. Should he should be forced to listen to brief details connected to his proposed treatment? Do doctors really want to force someone to listen? Is it possible to force someone to listen and digest information? Should he be left to die? In this situation it seems more likely that the patient would be judged as incompetent. He would then be treated in accordance with his best interests and his leg removed. He wakes up with only one leg. In this case adopting a substantive account of autonomy or considering the doctrine of informed consent as a sui generis doctrine changes nothing. It follows that whilst adopting a non-substantive might lead to some highly undesirable consequences in a few rare cases that it doesn’t lead absurd ones.

1. Supporting patient choices about health and care: Draft Guidance for consultation, GMC, 2019, [33]-[35]

Autonomy and Toleration

 

In this posting I want to examine the relationship between autonomy and toleration. This examination will highlight the tension between respecting autonomous decisions and autonomous persons. I will argue that the concept of autonomy we adopt affects how tolerant we should be. Toleration will be defined as accepting choices we believe to be wrong and have the power to change, provided that these choices don’t harm others. John Stuart Mill famously argued that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” (1) Mill was discussing liberty but the liberty to choose can be described as a primitive form of autonomy. Mill believed if we accept the above then we must also accept that “if all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. (2) It follows that if we equate autonomy with the liberty of Mill that toleration and autonomy are automatically linked and that we should tolerate any behaviour, which we disapprove of and have the power to change, provided that this behaviour doesn’t harm others.

It might be objected that it is overly simplistic to equate autonomy with liberty and that a more nuanced account of autonomy is needed. How then might we better define autonomy? Let us first consider autonomous decision making. Of course the freedom to choose is a necessary condition for autonomous decision making but it might not be a sufficient one. My objector might suggest that the simple freedom to choose is an insufficient condition for two reasons. Firstly she might suggest that for someone’s decision to be an autonomous one that it must accord with certain accepted norms in addition to the norm of not harming others. For instance if someone made decisions about what she should to do today based solely on her horoscope we might question if she was truly self-governing. My objector might then argue that our concept of autonomy must contain a substantive element and that that there is no meaningful content neutral account of autonomy. Secondly she might suggest that for someone’s decision to be autonomous he must accept Kant’s hypothetical imperative and always choose means that are likely to deliver the ends he seeks. For instance we might question whether someone was really self-governing if one of the ends he desired was increased learning and he sought to acquire this increase by prayer. In the light of my objector’s suggestions two arguments might now be advanced as to why autonomy and toleration need not be linked. Firstly if we accept a substantive account of autonomy which includes some accepted norms then we have no reason, based on respecting autonomous decisions, to accept those decisions which don’t concur with those norms and hence be tolerant.  Secondly it might be argued we have no reason based on respect for autonomy to respect, tolerate, those who choose means that are unlikely to achieve the ends they seek.

I have outlined a possible more nuanced definition of autonomous decision making. However we can respect autonomous decisions or autonomous people. Let us now turn our examination to respecting autonomous people. I will suggest that that respecting an autonomous person means accepting all of her decisions including ones that appear to have been made in a non-autonomous manner. My objector might argue that it is possible to respect someone as an autonomous person without respecting all of her decisions. In order to consider this objection I will first consider what sort of person is an autonomous person and how is she connected to autonomous decision making. It might be suggested that an autonomous person is simply one who always make autonomous decisions. If we accept this definition then we should have no problem in accepting all the decisions made by an autonomous person. However if we accept this suggestion it might be argued that it would be much simpler if we only respected autonomous decisions and ignored the concept of an autonomous person altogether. Moreover most people don’t always make decisions which conform to conditions outlined above for autonomous decision making, indeed it might be suggested that they rarely do so. It follows that if we accept the above that we are only going to respect an extremely small set of human beings as autonomous persons. In the light of the above should we simply respect human beings and forget about respecting autonomous people? I would suggest we shouldn’t. A three year old and an adult in the prime of her faculties differ in their capacities and intuitively the idea of self-control, self-government or autonomy seems central to this difference. Perhaps a better way to define an autonomous person would be to define her as a human being who has the capacity to make autonomous decisions. Such a definition would satisfy most adults because they want to be defined as the kind of creatures who can make their own decisions rather than simply being defined as human beings. Such a definition would also be useful because it defines a meaningful subset of human beings in contrast our previous definition which only defined a narrow subset. Lastly such a definition roughly concurs with Mill’s idea that liberty is “meant to apply to human beings in the maturity of their faculties”. If we accept this definition of an autonomous person then what does it mean to respect such a person? I have suggested above that this means accepting all her decisions which don’t harm others. Let us assume that we don’t respect all the decisions of someone who has the capacity to make autonomous decisions. Which of her decisions should we respect, only the one that are autonomous ones? However doing so means respecting an autonomous person is equivalent to respecting autonomous decisions and the concept of an autonomous person seems to do no work. Let us accept that if the concept of an autonomous person is to be a meaningful one that respecting someone as an autonomous person necessarily means accepting all of her decisions. This position seems to concur with that of Mill. It follows that respecting someone as an autonomous person means respecting, or at the very least accepting, her autonomous decisions. Acceptance of the above and the previously outlined definition of toleration means that we will be tolerant automatically. It means accepting choices we believe to be wrong and have the power to change, provided these choices don’t harm others.

It might be objected that it is difficult to ascertain whether someone has the capacity to make autonomous decisions. She might point out that if we respect autonomous persons and this means that we must respect non-autonomous decisions that this respect causes difficulties for the doctrine of informed consent. My objector might proceed to argue that because of this difficulty it would be much better to assess whether some specific decision was an autonomous one rather than whether the person making it had the capacity to make autonomous decisions. For this reason she might suggest that when we respect autonomy we should only respect autonomous decisions. She might point out that adopting her suggestion would mean that it would be easier to act beneficently towards someone who seems to be making a decision which runs counter to his best interests. If we accept that respecting autonomy means respecting autonomous decisions and accept a substantive account of autonomy then respect for autonomy and toleration aren’t automatically linked. There are no reason based on respect for autonomy as to why we should accept the decisions of others which conflict with our accepted norms. In a western democracy if the wearing of the hijab goes against our accepted norms then there is no reason to accept it based on respect for autonomy not to ban it; similarly in an Islamic state if not wearing the hijab goes against the accepted norms then again then there is no reason to accept not wearing it based on respect for autonomy. It follows that there is no reason based on respect for autonomy, as conceived above, as to why we should be tolerant, unless of course one of our accepted norms is to be tolerant.

It would seem if we believe respecting autonomy means respecting autonomous persons then we should be tolerant, if we accept a substantive account of autonomy and believe respecting autonomy means respecting autonomous decisions then we have no reason based on autonomy to be tolerant. I will now present two arguments as to why we shouldn’t accept that respecting autonomy means respecting substantive autonomous decisions. Firstly I would argue if we do so then we might be accused of epistemic arrogance. Let us accept that any autonomous decision must accord with the hypothetical imperative. Let us assume someone makes a decision using this imperative but that we don’t accept her decision as an autonomous one. It follows that our rejection is based on rejecting the beliefs or norms her decision is based upon. Let us also accept that our beliefs and desires help define us as persons. It follows if we don’t respect someone’s decisions that whilst we might be respecting her as a human being in a caring way but that we aren’t respecting her as a person. Autonomy and the concept of a person are of necessity connected. Most people don’t want to be only respected as a human being but as a person. It follows that if we only respect autonomous decisions we erode the concept of a person. Secondly I will argue that if we only accept a substantive account autonomous decisions that the concept of an autonomous decisions also loses its usefulness. If we only respect substantive autonomous decisions we only respect what we regard as good decisions. It follows if we only respect what we regard as good decisions the idea of autonomous making is doing no useful work and becomes redundant. It follows that that if he concept of autonomy is to remain a useful concept that we should reject a substantive account of autonomous decision making.

I have argued that we should reject a substantive account of autonomy. Most applied philosophers seem wedded to a substantive account of autonomy perhaps, this is because of an unconscious desire to justify their discipline for after all if something is a primitive concept then there is less of a need for applied philosophy. If we reject a substantive of autonomous decision making and still believe autonomy remains important then we must accept that respecting autonomy means respecting those people who have the capacity to make autonomous decisions. Respecting those people who perhaps aren’t as we educated as some are and rely on their emotions more than most people do. If we do so we must still be able to define an autonomous decision. Clearly not all decisions are autonomous. For instance random decisions, coerced decisions or decision made under some internal compulsion, such as a patient refusing consent because of fear, aren’t autonomous decisions. I have argued above that we should reject a substantive account of autonomous decision making because it erodes the idea of a particular person and reduces the need for autonomous decisions by equating them with good decisions. It follows that we should adopt a content neutral or primitive account of autonomous decision making. An autonomous decision is one which is freely made by someone which is based on her own beliefs and is instrumentally rational enough to serve those beliefs. Respecting this primitive concept of autonomy entails that we will be naturally tolerant. Respecting autonomy means accepting choices we believe to be wrong and have the power to change provided that these choices don’t harm others. Lastly if we accept that informed consent is based on respect for patient autonomy then adopting a primitive account of autonomy means a larger number of people should be competent to give consent compared to the number if we adopt a substantive account.

1. Mill J S. (1974) On Liberty and Other Essays. Oxford University Press (Oxfords Worlds Classics), introduction.
2. Mill J S, chapter 2

Montgomery and the Information needed for Valid Informed Consent

In the light of Montgomery case  the Royal College of Surgeons  has warned the NHS that failure to fully implement informed consent rules opens the way to more litigation. In this case the court held that doctors must ensure patients are fully aware of any and all risks that an individual patient, not mainstream medical practice, might consider significant. This judgement appears contrary to the judgement given in the Bolam case which held the information necessary for consent to be considered valid was the information most doctors would consider necessary. In other words, the medical profession could act in a paternalistic manner with regard to the amount of information it provided.

I have some sympathy for the Montgomery decision because I believe that patients rather than their doctors should decide how much information they need to make informed consent decisions. Nonetheless I also believe there is now a clear danger of some patients being over informed making it hard for them make informed consent decisions. There is a difference between doctors simply acting paternalistically and acting paternalisticlly if asked to do so. In this posting I will argue it is possible to over inform some patients and that it is possible to give adequate consent on limited information.

 In making by argument I will use an example provided by Steve Clarke.

“Consider the case of ‘Squeamish John’. Squeamish John cannot bear to hear the details of medical procedures; hearing these make him feel weak at the knees and dramatically diminishes his capacity to make sensible decisions. Nevertheless he does not wish to abrogate responsibility for his decision about whether or not to undergo an operation. Squeamish John wishes to participate in a restricted informed consent process in order to make his decision. He wishes to make a decision based only on the disclosure of the risks and benefits of the operation couched in cold, impersonal, statistical language. He does not wish to have any significant details of the procedure described to him.” (1).

In addition, let us assume John is lying in hospital bed suffering from type2 diabetes and needing a leg amputation. Let us assume John gives consent in the restricted way outlined by Clarke and he regains consciousness minus one leg. Intuitively such a situation seems very wrong. Nonetheless I would argue it is possible for John to make an autonomous decision based on restricted information. John is making a decision to trust his doctor and it is possible to make an autonomous decision based solely on trusting the advice of another. If I trust the advice of my lawyer or financial advisor I am making an autonomous decision I can identify myself with. Are then doctors any less trustworthy than lawyers or financial advisors? It seems obvious to me that they are not. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? Once again I would suggest it does not. It follows if squeamish John is permitted to make a decision in the way he prefers it would be an autonomous decision.

However, let us put questions of autonomy to one side. Let us assume John’s doctors follow the Royal College of Surgeons advice and do not allow him make his informed decision based on restricted information. Let us further assume John refuses to listen to or read most of the information they provide. In this situation it seems to me that John’s doctors have two available options. First, they might discharge him simply because he won’t listen knowing that his discharge will probably lead to death. In less life threatening cases than that of John this would be the probable outcome. It seems wrong to condemn summon to die because he simply won’t listen. Secondly they might decide his refusal to listen to all the details of his projected operation makes him incompetent to give consent. This decision would have to be validated by the courts. Let us assume this decision is validated and a decision on John’s treatment is made by a surrogate. This surrogate should make a decision based on John’s best interests, his best interests will be decided by his doctors. The outcome would be identical to that if it was accepted that John could make a valid informed consent decision based on trusting his doctors.

I accept my example is an extreme one but I believe it nonetheless raises some interesting questions. First, the Montgomery case seems to show that informed consent is not simply based on respect for autonomy. I have argued it is perfectly possible to make an autonomous decision based on trusting the advice of another person. Some patients at a very stressful time might want to make extremely complicated decisions and would prefer to make simple autonomous decisions. The Montgomery decision seems to deny them the possibility of making such decisions. The Montgomery judgement seems to require that much more information needs to be provided in order to make a valid informed consent decision as opposed to an autonomous decision. Secondly if doctors must ensure that patients are fully aware of any and all risks involved in their procedure, must doctors ensure they understand these risks including the probabilities involved or only have the capacity to understand. Must doctors ensure that their patients listen intently or fully read the information provided? Lastly even if doctors can be sure that patients understand the information should they also insist patients actually use it when making decisions? In conclusion I believe there are problems connected to the Montgomery case’s requirement that patients must aware of any and all risks involved their procedures. I also believe patients must have the possibility of becoming aware of any and all risks involved their procedures but that this awareness should be driven by patients’ needs. It seems this awareness is at moment being driven by fear of litigation rather than any genuine concern for patients’ real needs.

1. Steve Clarke, 2001, Informed Consent in Medicine in Comparison with Consent with Consent in Other Areas of Human Activity, The Southern Journal of Philosophy, 39, page 177

Autonomy and Beneficence Revisited

I have previously argued that if someone asks me to buy him cigarettes and I was not going to be significantly inconvenienced that I have reason to do so. I assumed that he was an adult fully aware of the dangers of smoking. I am a non-smoker and believe smoking is harmful. However I also believe in giving precedence to respecting autonomy over acting beneficently. Recently a posting by Michael Cook in bioedge has caused me to question my position. Cook considers the case of a North Carolina woman called Jewel Shuping. Ms Shuping wasn’t born blind but was convinced that she was meant to be blind.  According to her doctors she had Body Integrity Identity Disorder. A psychologist gave her some counselling and after this failed gave her some eye-numbing drops before washing her pupils with drain cleaner. Cook asks was the psychologist right to destroy his patient’s eyesight even if she freely requested him to do so and was happy with the result of this treatment? The case of Shuping is an extreme one, however let us assume I am a carer for someone who becomes housebound and unable to buy the cigarettes he had previously enjoyed. Let us further assume that I buy these for him for a number of years and that eventually he develops lung cancer. In this situation am I partly to blame for his condition or have I only been respecting his autonomy? In this posting I want to examine the way in which we should respect someone’s autonomy. This examination is important for as Cook points out it has wider implications in difficult contexts for informed consent such as gender reassignment surgery and euthanasia.

Why did I argue that if it didn’t inconvenience me that I should buy a smoker a packet of cigarettes when he asked me provided he was an adult and fully aware of the dangers involved? I argued by doing so I was respecting his autonomy. Most people would object that my buying someone cigarettes has nothing to do with respecting autonomy. Respecting someone’s autonomy to most people simply means not interfering with someone doing something he cares about provided that by so doing he doesn’t harm others. If this is all it means to respect autonomy then respecting a smoker’s autonomy gives me no reason to buy him cigarettes when he asks me to do so. Let us accept informed consent is based on respect for patient autonomy. It then also follows that Shuping’s informed consent gave her psychologist no reason to acquiesce to her wishes. He might of course thought he was acting beneficently.

I now want to argue that the account of autonomy outlined above is an incomplete one. I will argue that a more complete account means that someone’s autonomous wishes must carry some weight for me. Let us suppose someone asks me to do him a favour and that doing so would not significantly inconvenience me. If I respect him I must feel it would be better to satisfy these wishes, provided by doing so I do no harm. If this was not so I would be indifferent towards him. Being indifferent to someone is not compatible with showing respect. At this point it might be argued that satisfying someone’s wishes has more to do with acting beneficently towards him than respecting his autonomy. However I would reject such an argument. I can act beneficently towards my dog by satisfying his needs but this doesn’t mean I respect him. I may of course love my dog but love differs from respect. Respecting someone as a person means accepting him as the sort of creature that can determine his own future. Respecting someone as a person means accepting what he determines to be his wishes must have some sort of weight for me. If I see someone as the sort of creature who can determine his own future but give no weight to his wishes then I am indifferent towards him rather than respectful. It does not of course automatically follow on from giving weight to his wishes that I have to satisfy them. Doing so might may harm others or cause me significant inconvenience. However it does follow that if I respect someone as a person and can satisfy those of his wishes which do no harm others without any significant inconvenience that I have reason do so. It further follows a more complete account of autonomy requires satisfying someone’s autonomous wishes provided these wishes do no harm to others or cause significant inconvenience.

Let us accept this more complete account of autonomy. If we accept that informed consent is based on respect for autonomy then I would suggest Shuping’s psychologist did have reason to acquiesce to her demands. It might be objected even if Shuping’s desire did have some weight him that her psychologist should not have acted as he did due the harm caused. Cook poses the question,

“Was the psychologist right to destroy his patient’s eyesight if she freely requested it, was happy with the treatment, and was living in psychological torment because she could see.”

Let us assume that Shuping would have been satisfied if the psychologist had blinded her but that he didn’t do so. Perhaps he believed his refusal to act was in her best interests. However if he did this he might be accused of epistemic arrogance. Moreover he might be accused of failing to respect her autonomy because he is failing to see her as the sort of creature who could make her own decisions. If the above is accepted then when respecting someone else’s autonomy requires that ‘the doing no harm condition’ should be replaced by ‘doing no harm on balance’. At this point it might be objected that such a concept of autonomy is far too demanding as people cannot always decide what on balance does no harm and we should retain the simpler condition of doing no harm.

I now want to argue we should accept the condition of ‘doing no harm on balance’. Let us assume that embedded within our thicker account of respecting autonomy is the simpler Millian account. Let us assume our smoker makes an autonomous decision to buy cigarettes. It follows that if I respect his autonomy that I should not act to stop him buying cigarettes by hiding his wallet according to the Millian account. Now let us now assume that he has broken his leg and that it would not inconvenience me to buy him the cigarettes. However I believe the cigarettes will cause him harm and refuse. In both scenarios I can prevent this harm by refusing to buy cigarettes when he has broken his leg and by hiding his wallet when he hasn’t. In both of these scenarios the outcome doesn’t change. If I hide someone’s wallet then I am acting to block him from exercising his autonomy. And if I refuse to buy him cigarettes I am omitting to act. A discussion of autonomy is an unusual place for the act’s/omissions controversy to occur. Does the difference between acts and omissions apply in this context? Indeed is there any real difference between acts and omissions in practical deliberation, see Julian Savulescu’s posting in practicalethics . In both of the above scenarios we are aware of the effects of our choice of behaviour. Christine Korsgaard argues that “choosing not to act makes not acting a kind of acting, makes it something that you do.” (1) I would suggest provided Korsgaard is correct then if someone chooses to act or chooses to omit to act that there is no meaningful difference between acts and omissions. It is still possible that acts and omissions might differ provided ones actions are ones he is fully conscious of and are omissions are unconscious choices. However is such a difference one between acts and omissions or a difference between degrees of consciousness concerning our behaviour? The above suggests to me that when it comes to respecting autonomy there is no meaningful difference between acts and omissions. It follows if I believe smoking will harm the smoker but refrain from hiding his wallet but refuse to buy him cigarettes I am acting inconsistently.

What conclusions can be drawn from the above? Firstly that a purely Millian account of autonomy is an incomplete account. A more complete account means that respecting someone’s autonomy requires that one must sometimes act beneficently towards him by attempting to satisfy his desires provided so doing does not harm him on balance and does not cause significant inconvenience. Autonomy and some forms of beneficence are linked. Of course I accept that someone might have other reasons to act beneficently which are independent of respecting autonomy. Secondly it follows I should buy the smoker his cigarettes. Lastly it would seem Shuping’s psychologist acted correctly. I am somewhat reluctant to accept this conclusion. Perhaps in cases in which the stakes are so high there must be some doubt as to whether one is in fact causing no harm on balance and the precautionary principle should be applied. Nonetheless in spite of my reluctance I am forced to conclude that provided he was sure he was causing no harm that on balance Shuping’s psychologist was acting correctly.

1. Christine Korsgaard, 2009, Self-Constitution, Oxford University Press, page 1.

What do we mean by true self?

In this posting I want to examine what we mean by true self, indeed even wether the concept is a meaningful one. Buddhists and David Hume would suggest that true self is an illusion. Perhaps anti-vaxxers suggest otherwise? Their decisions seem to be based on the need to identify as a certain sort of person rather than the facts In an interesting piece posted in peasoup Joshua Knobe wonders whether the notion of a 'true self' really is best cashed out in terms of certain distinctive features of an agent's psychology. He suggests that our notion of a true self is a value-laden one and that we partly determine what lies within an agent's true self by making value-judgments of our own. In this posting I will firstly wonder whether the idea of a true self is even a meaningful one. I will conclude it is. This conclusion will open up the idea of a true self that can be cashed out in certain distinctive features of an agent's psychology. I will suggest these distinctive features are the agent’s pride and shame.

Let us examine Knobe’s position. Knobe asks us to consider someone,

“who is addicted to heroin but who desperately wants to kick the habit. He has a craving for another hit, but when he reflects, he rejects this craving and wishes he could get rid of it. Now ask yourself: Which part of this person constitutes his true self -- his craving for another hit or his desire to quit?”

Knobe suggests that intuitively we would link his true self with his desire to quit. He then asks us to consider an evangelical Christian called Mark

“He believes that homosexuality is morally wrong. In fact, Mark now leads a seminar in which he coaches homosexuals about techniques they can use to resist their attraction to people of the same-sex. However, Mark himself is attracted to other men. He openly acknowledges this to other people and discusses it as part of his own personal struggle.”

Knobe suggests in this case our intuitions are not so clear. Perhaps if someone is a born again Christian his intuitions would link Mark’s true self to his belief that homosexuality is wrong. Whilst someone of a more liberal nature would link Mark’s true self to his underlying sexual desires. The above leads Knobe to suggest that our idea of someone else’s true self is dependent on our values.

My first reaction to Knobe’s suggestion is to question whether such a concept of a true self is a useful one. Perhaps we should simply say we have a self and leave David Hume would suggest  that the whole idea of a self is an illusion. I would not go as far as that because everyone is different. Moreover everyone remains different even when we disregard their physical attributes. People are different because they have differing dispositions, abilities and personalities. If we define someone’s self by a set of non physical attributes such as, his dispositions, abilities and personality then he has a self. Let us accept that someone’s self is a meaningful concept, but is the idea of someone’s will meaningful? Many experiments have demonstrated that our decisions are partly determined by the situations we find ourselves in. For instance in a classic experiment Alice Isen and Paula Levin showed being made to feel good greatly influenced someone’s subsequent actions. In this experiment Isen and Levin showed that someone who dropped papers outside a phone booth was much more likely to be helped to pick them up if the person in the booth had just found a dime in the slot (1). Such experiments do not show we don’t have a will. However in the light of them someone might suggest our will is irrelevant when it comes to decision making. In response I would simply point out that not everyone makes the same decision in the same situation and that this difference in decision making is best explained by our differing dispositions, abilities and personalities, our self. The way in which our decisions are affected by our self is our will. I accept of course that many of the decisions, we think we consciously make, are made unconsciously and that sometimes our consciousness merely endorses these decisions. It follows that in many ways our will is not always under our conscious control. Let us accept our self and our will are as defined above.

 If we accept it makes sense to talk about someone’s self and his will does it also make sense to talk of his true self? I accept the idea of someone’s self can be cashed out in certain distinctive features of his psychology but are there any additional distinctive features of his psychology that mark out his true self? My initial reaction was that there are not. However on reflection it seems to me there might be. What then could be the distinctive features of someone’s psychology that mark out his true self? In what follows I will argue those distinctive features are his pride and shame. Prior to making my argument I must make it clear what I mean by pride and shame.

I will deal with shame first. David Velleman suggests shame is anxiety about social exclusion (2). I have argued that there are two types of shame . Type one is as suggested by Velleman. Type two shame is someone’s anxiety about harming the things he loves or values. I would further suggest that, with the exception of sociopaths, all people feel type two shame. When considering shame with regard to someone’s true self I am only interested in type two shame. Let us now consider pride. Pride might be very roughly defined as someone’s pleasure or satisfaction with his belief that he possesses some property which he values. Unlike shame I believe there is only one sort of pride. However there are deficient forms of pride as shown by Shakespeare’s Coriolanus, see damaging self love pride and shame. Firstly pride may be empty when someone’s pride is focussed on himself, rather than some of the attributes he possesses or values he holds. Secondly pride may be exclusive when a proud person is incapable of feeling any shame. I would class such forms of pride as deficient pride and when considering someone’s true self I only interested in non- deficient pride.

  will now suggest our true self is defined by a subset of our actions, those actions that cause us to feel pride or shame. It is sometimes suggested that someone’s true self is defined by the beliefs and values which he reflectively endorses. I accept someone’s true self is connected to his beliefs and values. However I do not believe someone’s beliefs and values are simply defined by his endorsement following some reflection. Someone might believe he will act in a certain way but when the time for action comes finds he cannot do so in that way. What he thought he believed or valued doesn’t give him reason to act. I would suggest that someone the beliefs and values which define his true self are determined by what he feels proud or ashamed of. Indeed someone might not be fully aware of his beliefs and values and can come to a better understanding of himself not by reflection, but by those of his actions of which he is proud or ashamed of. If the above is accepted then others can also make sense of his true self by those of his actions which he is proud or ashamed of. Additionally I would suggest that actions which make someone proud are actions he can defend even if sometimes his defence can sometimes only be mounted retrospectively. Similarly someone must be able to give some reason for his shame. An objector at this point might object that a retrospective defence is simply a justification. I will not pursue his point here.

 Let us return to Knobe’s two examples using the above definition. In the case of the heroin addict our intuitive ideas of someone’s true self and his true self coincide. Let us now consider Mark. Let us assume that even though Mark openly acknowledges he is attracted to other men, to other people and discusses it as part of his own personal struggle, he feels some shame about this fact. Let us also assume that Mark feels some pride about his coaching homosexuals in techniques they can use to resist their homosexual inclinations. Knobe suggests our intuitions about Mark’s true self depend upon whether we believe homosexuality is acceptable or not. I would suggest provided, we know what Mark is proud or ashamed of in his thoughts and actions concerning homosexuality, our intuitions about Mark’s true self do not depend on our beliefs about homosexuality. In order to see this let us consider someone who believes homosexuality is acceptable. Let us assume he accepts that Mark is ashamed about his feelings for other men and that he can account for his shame by referring to his beliefs and values. Let us further assume he also accepts that Mark is proud he coaches homosexuals in order to change their sexual inclinations and that he can defend this coaching by referring to his beliefs and values. I would suggest that such a person would find it difficult not to associate Mark’s true self with coaching of homosexuals rather than his desire for other men irrespective the person’s own values. It should also be possible to set up an experiment to test the validity of my suggestion.

I have argued the idea of someone’s true self is a meaningful concept. However not all meaningful concepts are useful ones. I will now use a real life example to tentatively suggest that someone’s true self might be a useful concept. I will use the example of MB, see General Medical Concuil's consent guidelines . MB was twenty-three years old and was thirty-three weeks pregnant. She visited her local health clinic twice and on each occasion was asked for a sample of blood. On both occasions she refused consent saying she was frightened of needles. At a later visit to the health clinic it was suspected that her baby was in a breech position and this was later confirmed by ultrasound.  Breech position carries the risk of prolapse. If prolapse occurs there is a risk that the baby’s umbilical cord might get entangled in the membranes after they have ruptured causing the baby’s blood supply to be obstructed during birth. This obstruction might cause death or brain damage to the baby due to lack of oxygen. The above was explained to MB and she was admitted to hospital where she consented to a caesarean section but she again refused to consent to a venepuncture to provide blood samples. However, when she was taken to operating theatre and the anaesthetist wished to insert a veneflon, MB refused consent and was returned to the ward. Later, when her GP visited her, she again consented to the caesarean section. However she again refused consent when taken to operating theatre. The Hospital trust applied to the courts and MB was found to be of unsound mind due to her ambivalence caused by her needle phobia and hence her refusal of consent was incompetent. In cases of ambivalence such as that of MB it makes sense to ask which decision represents the patient’s true self. If a patient can coherently defend his decision based on his beliefs and values then provided he has a true self his decision should be accepted. If however his ambivalence extends to his beliefs and values and these conflict it might be questioned if he really has a true self. In the case of MB her refusal of consent to a venepuncture was not a decision she could defend, it was not a decision that reflected her true self and as such was not a competent decision.

1. Alice Isen, Paula Levin, 1972, Effect of feeling good on helping: Cookies and kindness, Journal of Personality and Social Psychology, Vol 21(3), Mar, 384-388.
2. David Velleman, 2009, How We Get Along, Cambridge University Press, page 95.

Extended Consent

We usually consent to some action immediately prior to that action. Sometimes our past consent may be thought to extend into the future. Living wills or last directives are now widely accepted and may be thought of as a kind of extended consent. Even if extended consent is widely accepted there remain some problems connected to the concept. The Law Commission’s report defines extended consent in section 2.11 of "Consent in Sex Offences"   as follows,

“If what is relied on is past agreement, this will mean both, (a) that, when previously given, the agreement must have extended to the doing of the act at that later time, and (b) that it must not have been withdrawn in the meantime. We believe that it should be made clear that consent may be express or implied.”

The same report gives the following example of extended consent in section 4.54.

“For example, at 8 pm P makes it clear that she is looking forward to having intercourse with D that night. By 11 pm she is too drunk to know what she is doing, but D has intercourse with her anyway. Can it be said that she does not (because she cannot) consent to the intercourse at the material time, namely the time of the intercourse? In our view it cannot. Consent is not a state of mind which must invariably exist at the time of the act consented to, but an expression of agreement to that act – the granting of permission for it.”

The report’s authors seem to believe P’s consent is valid and that D commits no offence. Their belief seems to be based on the assumption that there are no conceptual problems with extended consent. The starting point for this posting originated in a piece by Jeremy Stangroom in the Philosophers Magazine’s blog, see 'More Sex when drunk'. Stangroom believes, as I do, that P’s extended consent would not be valid. If we are correct then either there is no such thing as extended consent or the report’s definition is inadequate. In this posting I will attempt to give a more adequate definition of extended consent.

The concept of extended consent is certainly useful. For instance, if a patient is about to undergo surgery then her informed consent is usually sought sometime prior to the actual surgery rather than when she is being wheeled into the operating theatre. The use of extended consent in this instance is good practice as it gives the patient time to absorb the information she needs to make a balanced decision and means she is less likely to make a decision under stress than if she made her decision immediately prior to her operation. Of course such a patient may withdraw her extended consent at any point up to the time her surgery takes place. The idea of extended consent is also useful in cases in which a decision has to be made whether or not to resuscitate a terminally ill patient. Such a decision is made much easier if the patient has made a last directive or living will. It might be thought the further consent is extended into the future the more likely it is to lose its validity. However the above examples from medical practice show that in practice this is not always true. None the less I shall argue below that extended consent should not be extended too far. Intuitively someone’s consent to surgery is perfectly valid tomorrow or even the day after but the same does not apply to intercourse. In what follows I will firstly argue what really matters for extended consent is the basis on which the consent giver makes her decision and secondly how far her consent is extended.

If someone consents to intercourse on what does she base her decision? Someone certainly doesn’t make a decision to have intercourse based on pure reason. I would suggest her consent is simply based on how she feels, on her mood. If this is accepted then it is hard to see how she could possibly extend her consent for intercourse into the future. She cannot know what sort of mood she will be in, how she will feel, in a few hours time. If I am correct then consent to intercourse may only be given at the time intercourse is going to take place contrary to the Law Commissions report. However if someone consents to surgery then her mood at either the time she made her decision or when surgery takes place seems to be irrelevant. When someone consents to surgery she makes an informed consent decision. Her decision is made using practical reason and based on the information provided by her medical team together with her belief about what is best for her. Practical reason doesn’t vary as moods do. It follows provided the patient’s circumstances don’t change her consent decision would be the same tomorrow or even next week. It further follows consent based on ongoing factors using practical reason can be extended to some degree.

I now want to examine just how far consent based on continuing facts using practical reasoning can be extended. Can for instance the hypothetical withholding of consent be extended years into the future as happens with living wills? The nature of practical reason does not change over time so changes in practical reason cannot be used to justify limiting the extension of consent. An essential element of any living will is that the state of affairs relevant at the time the will is implemented is the same as the facts envisaged when the will was made. It might be thought provided this element is satisfied that there is no problem in extending the withholding of consent as expressed in living wills. Such a thought would be premature for what also matters is someone’s beliefs about what is best for her given these facts. Her belief about what is best for her depends on what she “cares about”. In this posting as in previous postings in this blog I will assume to “care about” something means someone identifies herself with which she cares about, see (1). Caring about in this sense has nothing to do with whether someone is in the mood for intercourse or not. When someone “cares about” something this “caring about” must have some persistence, see (2). Of course when someone attends to other things she doesn’t have to actively care about something she cares about but she does have to have a disposition to care about it in the appropriate circumstances. It would seem to be nonsensical to say if someone “cares about” something she could suddenly abandon this care for ever. When the term “care about” is used in the above sense it is roughly equivalent to loving something, see (3). It once again might be thought because what we love, or “care about”, must have persistence that that there is no problem in extending the withholding of consent as expressed in living wills. Once again such a thought would be premature. Love must have some persistence but both someone and what she loves can gradually change over time.

The above suggests that whilst consent can be extended there are limits to just how far this extension can go. In particular there might be problems with extended consent in relation to living wills. The first problem concerns the persistence of what someone “cares about”.  What someone “cares about” must have some persistence, perhaps a few years, but does what someone “cares about” always persist for a decade or even decades? The second problem with living wills is that they anticipate hypothetical events. The will maker may have no experience of these events to guide her. The patient giving her consent for surgery tomorrow is not simply considering a hypothetical event but one that is actually going to happen. Someone attempting to give her consent to intercourse later that night has presumably some experience of intercourse. The realness of these situations gives someone’s decisions focus. It may be that someone when faced with a hypothetical situation may believe she would choose a particular course of action in that situation. Later when actually in this situation, she may discover she was wrong and that she cannot follow that particular course of action. I would argue much the same is true of living wills. Someone may specify in a living will she would not consent to treatment in a certain hypothetical situation. However were this situation to occur she might well have consented had she been able.

In spite of these problems I believe living wills can be useful subject to the proviso that these wills are fairly recent. For instance if a patient learns she has a terminal disease this would be the ideal time to make a living will. If a living will is fairly recent it should be realistic to assume it represents a patient’s extended consent because what she “cares about” should not have changed during period between the making and the implementation of the will. I also believe if the validity of a living will is limited by time that this limitation is likely to force the will maker focus on the hypothetical situation more seriously than she would do if considering situations decades into the future. Perhaps living wills should only be valid for up to five years.

In the light of my discussion above I would redefine an extended consent decision as follows. An extended consent decision is one made using practical reason which is based on what someone “cares about” rather than her current mood, which is valid only for a limited period of at the most a few years and has not been revoked. Someone might object that this is not a useful definition in practice as it is difficult to separate what someone “cares about” from her fleeting moods and emotions. I accept this difficulty but would argue it doesn’t have the same weight when applied to extended consent. I would suggest “caring about” a decision involves being satisfied with that decision. I would further suggest this is true irrespective of whether caring about is defined as simply a matter of will or is connected to some emotional dispositions. I would further suggest that being satisfied with a decision simply means no restlessness with the decision or any desire to change it. If my suggestions are accepted then, because extended consent by its nature allows ample time for any restlessness with someone’s consent decision to become apparent, we can be satisfied in the absence of this restlessness that her decision is based on what she “cares about”.

1.      Frankfurt, H. (1988) The Importance of What We Care About. Cambridge University Press page 83.

2.      Frankfurt, H. (1988), page 84.

3.     Frankfurt, H. (1999) Necessity, Volition, and Love. Cambridge University Press, page 165.

Valid Consent, Good Consent and Asymmetric Competence

In this posting I want to consider the topic of informed consent. Eric Chwang is interested in the difference between the standard needed for consent to be considered valid for normal clinical patients and the standard necessary for valid consent from research subjects (1). In this posting my sole concern is with normal patients. Chwang takes as his starting point the judgement in Canterbury v Spence, see Canterbury v Spence . This Judgement has two main strands. First the information a doctor must give a patient should be determined by the patient’s needs. The second condition places a restriction on these needs. Chwang calls the second condition the pragmatic criterion and expresses it as follows,

 “in order for consent to be valid, whether some piece of information needs to be disclosed depends on whether it might affect the patient’s (subject’s) decision whether to consent.” (2

)

The pragmatic condition seems to reflect the judgement in the Montgomery case . In this case the court held that doctors must ensure patients are fully aware of any and all risks that an individual patient, not just the risks mainstream medical practice, might consider significant. It is the consequences of accepting the information requirements of this judgement I want to explore in this posting.

The pragmatic criterion gives us some guidance as to how much information a patient should be supplied with in order to make a competent decision. Unfortunately, this guidance seems to be at odds with the idea of informed consent being based on respect for patient autonomy. Suppose a patient simply understands he is likely to die without treatment and makes a decision on solely this basis, if any additional information will not alter his decision then according to the pragmatic criterion it is unnecessary to disclose any additional information. Chwang writes,

“Suppose that the only way to save my life is by amputation. To get consent for ‘life saving treatment’, but without also mentioning that the treatment in question is amputation, would be grossly inappropriate” (3).

The question I will now discuss is what is inappropriate about obtaining consent in this way? In order to help in this discussion I will use an example provided by Steve Clarke.

“Consider the case of ‘Squeamish John’. Squeamish John cannot bear to hear the details of medical procedures; hearing these make him feel weak at the knees and dramatically diminishes his capacity to make sensible decisions. Nevertheless he does not wish to abrogate responsibility for his decision about whether or not to undergo an operation. Squeamish John wishes to participate in a restricted informed consent process in order to make his decision. He wishes to make a decision based only on the disclosure of the risks and benefits of the operation couched in cold, impersonal, statistical language. He does not wish to have any significant details of the procedure described to him.” (4).

Let us assume John gives consent in manner outlined by Clarke and he wakes minus one leg. Chwang would find this situation grossly inappropriate and according to the Montgomery judgement John’s would have given inadequate consent. I now want to consider is inappropriate or inadequate about such a decision. I will now argue what is inappropriate or inadequate about such a decision is not that it is an non autonomous one. Let it be accepted an autonomous decision is simply a decision with which the agent identifies himself and ‘cares about’; in this context I am using ‘cares about’ in the same way as it is used by Harry Frankfurt (5). If autonomy is defined in such a manner John’s decision appears to be autonomous. However, some objector might argue for any decision to be autonomous it must be made using practical reason. Even if this objection is accepted it might be argued that practical reason is closely tied to an agent’s identity and what he cares about. David Velleman for instance believes practical reason is defined by the self-understanding someone gains by playing himself (6). This understanding depends on him doing what makes sense or seems appropriate to him; he must identify with and care about such actions. However, my objector might respond further by arguing this isn’t normally how we use the term practical reason. She might argue that anyone using practical reason to make a decision should objectively weigh up all of her available options connected to this decision. Any decision made this way would satisfy the Montgomery judgement.

For the sake of argument let us assume that assume practical reason does involve some objective weighing up of all the relevant costs and benefits and that for a decision to be autonomous it must utilise practical reason as so defined. However, if we accept the above it follows that squeamish John’s cannot make an autonomous decision. In this situation John’s squeamishness means his preferred way of making his consent decision is the only possible way he can make a decision. In everyday life outside a medical context all of us sometimes delegate important decisions to experts of our choice, such as lawyers or financial advisors, without others questioning our autonomy. Are then doctors any less trustworthy than lawyers or financial advisors? It seems obvious to me that they are not. Does then the context in which informed consent takes place differ from other contexts such as the law and finance in respect of an agent’s ability to make autonomous decisions? I would suggest it does not. It follows if squeamish John is permitted to make a decision in the way he prefers it would be an autonomous decision. It further follows what Chwang finds inappropriate, or the Montgomery judgement finds inadequate, about such a decision is not that it is a non-autonomous one.

I have argued squeamish John’s proposed decision would be an autonomous one. I would suggest what Chwang finds grossly inappropriate or the Montgomery judgement inadequate about such a decision is either that it is not a good decision or a good way to make such a decision. I would argue we should not equate autonomous decisions with good decisions. Autonomous decisions are simply autonomous decision and not autonomous decisions plus another requirement. Autonomous decisions as defined above need not of necessity good decisions. None the less autonomous decisions cannot simply be made at random, by the throw of a dice for instance. Autonomous decisions must be made on the basis of some information. If it is accepted that autonomous decisions need not of necessity be good decisions then the amount of information necessary to make an autonomous decision may not always be identical with the amount of information needed to make a good decision. The above raises the question about how much information is needed to make an autonomous decision?

In order to answer the above question, we must first be clear about an agent’s purpose when making an autonomous decision. I have suggested above an autonomous decision is one which the agent ‘cares about’ and with he identifies with. This type of decision is one the agent is wholehearted about. Frankfurt argues a wholehearted decision is one with which the agent is satisfied with. He further argues satisfaction involves an absence of restlessness and any desire for change (7). It is of course true that many agents would not be satisfied with any decision they regarded as sub optimal. However, it would appear a decision need not be an optimal decision for it to be an autonomous one according to Frankfurt. All that is necessary for a decision to be autonomous is that the agent is satisfied with his decision. I accept such a position. My objector might again point out such decisions need not be rational ones and that any decision lacking rationality should not be regarded as a fully autonomous one. In reply I would question exactly what is meant by rational. I will assume in the context of giving consent rationality refers to practical rationality. If this is so I would once reiterate that some philosophers such as Velleman would regard decisions with which the agent is satisfied with as defined above or finds appropriate as practically rational. In addition, I would argue such decisions are examples of satisficing or bounded rationality. The term satisficing was introduced by Herbert Simon in 1956. Satisficing does not require an agent maximise his good. Satisficing only requires that an agent brings about an outcome that he considers good enough by some standard. My objector might now point an autonomous agent needs only to be satisfied with his decision and does not set some standard by which any option must be judged. She might then argue any such decisions are not examples of bounded rationality. In reply I would suggest satisfaction as defined above must at the very least involve some unconscious bounds and that autonomous decisions implicitly involve bounded rationality. It follows the amount of information needed for an agent to make an autonomous decision is the amount of information that would satisfy agent.

I have used the example of squeamish John to show in certain contexts, provided the only way to save someone’s life is by amputation and consent is obtained without mentioning this fact, that none the less the patient’s consent might be autonomous. Chwang believes such consent would be grossly inappropriate. Chwang’s belief seems to be based on the idea that the patient has been inadequately informed. I believe Chwang is correct in most contexts but not all. Good quality consent should be an aim of the informed consent process, see GMC guidance for consent . However, the taking of consent like medical interventions does not always occur under ideal conditions and in some contexts good quality consent may be impossible. The General Medical Council’s guidelines on consent of 1998 specifically stated that the purpose of consent was to respect patient autonomy. The current guidelines mentioned above do not explicitly base informed consent on respect for autonomy but none the less implicitly require this respect. If respect for autonomy is the sole principle on which informed consent is based then we must simply respect all autonomous decisions. My objector might point the purpose of medicine is to act beneficently towards patients. She might then use this fact to argue basing informed consent solely on respect for autonomy is simplistic. She might then suggest the purpose of informed consent should be to respect patient autonomy and enable them to make good decisions. I accept the above is the ideal which informed consent should aim for. However, in some contexts acting beneficently might clash with respecting patient autonomy. Such a clash must be resolved. I have previously suggested we cannot act truly beneficently if we fail to respect autonomy. We must give priority to respecting autonomy over acting beneficently when these values clash, see Autonomy and acting Beneficently. Accepting the above means we must in some situations accept less than ideal decisions provided these decisions are autonomous and that Chwang is mistaken to regard such decisions as inappropriate in these situations.

Lastly I want to consider whether a consequence of accepting the pragmatic criterion is accepting the concept of asymmetric competence. This concept is defined by Wilks as follows.

“If we consider a safe, routine treatment for an acute and dangerous condition (as with an appendectomy for appendicitis), it is clear that the risk in accepting the treatment is small, the benefit great, while the risk in refusing it is great and the benefit in most cases non existent. This means that one confronted with this choice would require a higher level of competence to say no than to say yes, with, indeed, a very pronounced difference between the levels” (8)

Intuitively the pragmatic criterion supports Wilks’ position. In the situation such as that envisioned by Wilks above if a patient consents a great deal of information is unlikely to alter his decision. However, were he to refuse to consent some additional information might well alter his decision. Before considering the question of asymmetric competence I will examine two related concepts. I will examine the asymmetric triggering of competence assessments and the asymmetry in information needed to give competent consent and to give a competent refusal. I will firstly argue that for pragmatic reasons there should be asymmetric triggering of competence assessments. Indeed, it seems unlikely any patient’s competence will be questioned provided his consent is sought and he consents. I would support this failure to assess competence only in situations in which there is universal agreement among health professionals that some particular treatment is in a patient’s best interests. I have argued the most important purpose of patient consent is to protect patient autonomy. The reason why competence is sometimes assessed is to ensure non-autonomous patients receive beneficent care. In the light of the above assessing a patient’s competence if he consents seems unnecessary. Provided the patient is competent his autonomous decision should be respected. However, if he was assessed as incompetent and a surrogate decision maker made a decision on his behalf then any treatment would identical with the treatment he had previously consented to. It follows no useful purpose is served by assessing a patient’s competence provided he consents to some treatment when the health benefits are clear and the risks of non-treatment great.

I will now argue there is an asymmetry in the information needed for a patient to make a competent decision when he consents and when he refuses to consent. Let it be accepted as I have argued above any autonomous decision must count as a competent decision. Let us consider squeamish John once again. John consents to treatment and is satisfied with his decision. It might be suggested the reason why John is satisfied is that he finds the decision is appropriate to him because he can justify it to himself. John can justify his decision by trusting his doctors to do what is in his best interests. The minimal amount of information John receives also satisfies the pragmatic criterion as any additional information will not alter his autonomous decision. It follows as I have argued above John can make a competent decision, even if less than an ideal one, based on the minimal information provided. Now let us consider a situation in which a patient refuses to consent and insists on only being supplied with the same minimal information available to John. In this situation, provided the patient’s condition is non-life threatening, the procedure would simply be cancelled and the patient’s competence would remain unquestioned. For example a patient who refuses to consent to a hip replacement. However, let us assume the patient’s condition is life threatening. In this situation I would argue such a patient cannot make an autonomous decision and hence is not competent to give consent. There might be one exception to the above. A suicidal patient may well have enough information to make an autonomous decision. Needless to say medicine is not in the business of helping patients commit suicide with the possible exception of those who are terminally ill. The reason why such a patient cannot make an autonomous decision is he does not have enough information to make a decision with which he can be satisfied; a decision that he can justify to himself. In addition any additional information may well alter the patient’s decision meaning the information provided in this situation does not satisfy the pragmatic criterion. It follows if we accept either that a competent decision must be autonomous one or one requiring that a competent patient has enough information to satisfy the pragmatic criterion that a patient in this situation cannot make a competent decision. It further follows there is sometimes an asymmetry in the information a patient needs to make a competent decision if he consents and the information he needs if he refuses to consent.

Let it be accepted asymmetry between the information a patient needs when he consents and refuses consent. It is then possible for a patient to be asymmetrically competent. If a patient can understand the information needed to consent but fails to understand the additional information needed to refuse consent then he is asymmetrically competent. In practice I believe this situation is unlikely to occur as it seems to me most patients will be capable of understanding the additional information.

1. Eric Chwang, 2010, A Puzzle about Consent, Journal of Applied Philosophy, 27(3).
2. Chwang, page 262.
3. Chwang, page 265.
4. Steve Clarke, 2001, Informed Consent in Medicine in Comparison with Consent with Consent in Other Areas of Human Activity, The Southern Journal of Philosophy, 39, page 177
5. Harry Frankfurt, 1999, Necessity, Volition, and Love, Cambridge University Press
6. David Vellman, 2009, How We Get Along, Cambridge University Press, page 18.
7. Frankfurt, 1999, page 103.
8. Wilks, 1997, The debate over Risk-related Standards of competence, Bioethics 11(5), page 417., 2010, A Puzzle about Consent, Journal of Applied Philosophy, 27(3)..